Wednesday, July 6, 2016
Why the FBI's non-indictment still offers plenty of evidence against Hillary Clinton
In the end, James Comey issued a non-legal indictment
against Hillary Clinton, accusing her of recklessness in mishandling
classified information while concluding that no criminal charges should
be brought.
That, of course, unleashed a storm of partisan commentary, even though the FBI director hardly gave her a clean bill of health. And in declining to recommend an indictment, Comey removed the last shred of doubt that the onetime first lady will be the Democratic presidential nominee.
I am going to approach the subject as a former Justice Department reporter who has covered every special prosecutor’s investigation in recent decades—not as a partisan who either believes that Clinton did nothing wrong or that she should already be behind bars.
The key sentence in Comey’s announcement yesterday is that despite the evidence uncovered by the bureau, “our judgment is that no reasonable prosecutor would bring such a case.”
I don’t agree with that. The former federal prosecutor laid out layers of facts that could have supported an indictment. The gross negligence in using her private email to send classified information—in direct contradiction of what the candidate has claimed—could have amounted to one or more criminal charges.
I also believe there was a higher bar with Clinton as the target. That’s not to say that Comey succumbed to political pressure, as he insists he did not. But a decision to indict Clinton would have knocked her out of the presidential race. In that kind of circumstance, a close call goes to the high-profile target.
Much of the reaction turns on whether Comey’s reputation as a straight shooter—he was deputy attorney general in the Bush administration before President Obama tapped him for the FBI—carries sufficient weight. None of us has seen the voluminous evidence compiled by the bureau, culminating in Saturday’s interview of Clinton—days after that spectacularly wrong-headed meeting between her husband and Loretta Lynch.
Donald Trump wasted little time in tweeting: “The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.” Of course, Trump anticipated the outcome by declaring the system rigged last week, and has said that her offenses are such that she shouldn’t even be “allowed” to run.
It’s no accident that Comey front-loaded his remarks with paragraph after paragraph of criticism before announcing that Clinton would not be charged.
Among other things, Comey blew away Clinton’s repeated insistence that she never sent nor received classified information. To wit:
“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is information that they were extremely careless in their handling of very sensitive, highly classified information.” And: “Even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
In fact, the FBI found 110 emails in 52 separate chains that were classified when they were sent or received. And intent does not matter when it comes to bringing charges.
Comey did say he found no deliberate effort to destroy emails, beyond routine maintenance, but that some of those that were deleted will never be recovered.
And while the bureau uncovered no hard evidence that foreign entities had hacked Clinton’s private server, Comey said it was quite possible, and that the hackers could have covered their tracks.
Clinton’s campaign said it was “pleased” with the outcome and reiterated that using the private server was a mistake—though she spent months denying that after the New York Times broke the story last year.
By branding Clinton “extremely careless,” Comey has handed Trump, the Republicans and other Hillary detractors ample ammunition. Indeed, the RNC called the bureau’s findings “a glaring indictment of Hillary Clinton’s complete lack of judgment, honesty and preparedness to be our next commander-in-chief.”
It is, as I said, an indictment in all but the criminal sense.
As for any punishment, Hillary Clinton will not have to go to court. But she will be tried this fall in the court of public opinion.
Howard Kurtz is a Fox News analyst and the host of "MediaBuzz" (Sundays 11 a.m. and 5 p.m. ET). He is the author of five books and is based in Washington. Follow him at @HowardKurtz. Click here for more information on Howard Kurtz.
That, of course, unleashed a storm of partisan commentary, even though the FBI director hardly gave her a clean bill of health. And in declining to recommend an indictment, Comey removed the last shred of doubt that the onetime first lady will be the Democratic presidential nominee.
I am going to approach the subject as a former Justice Department reporter who has covered every special prosecutor’s investigation in recent decades—not as a partisan who either believes that Clinton did nothing wrong or that she should already be behind bars.
The key sentence in Comey’s announcement yesterday is that despite the evidence uncovered by the bureau, “our judgment is that no reasonable prosecutor would bring such a case.”
I don’t agree with that. The former federal prosecutor laid out layers of facts that could have supported an indictment. The gross negligence in using her private email to send classified information—in direct contradiction of what the candidate has claimed—could have amounted to one or more criminal charges.
I also believe there was a higher bar with Clinton as the target. That’s not to say that Comey succumbed to political pressure, as he insists he did not. But a decision to indict Clinton would have knocked her out of the presidential race. In that kind of circumstance, a close call goes to the high-profile target.
Much of the reaction turns on whether Comey’s reputation as a straight shooter—he was deputy attorney general in the Bush administration before President Obama tapped him for the FBI—carries sufficient weight. None of us has seen the voluminous evidence compiled by the bureau, culminating in Saturday’s interview of Clinton—days after that spectacularly wrong-headed meeting between her husband and Loretta Lynch.
Donald Trump wasted little time in tweeting: “The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.” Of course, Trump anticipated the outcome by declaring the system rigged last week, and has said that her offenses are such that she shouldn’t even be “allowed” to run.
It’s no accident that Comey front-loaded his remarks with paragraph after paragraph of criticism before announcing that Clinton would not be charged.
Among other things, Comey blew away Clinton’s repeated insistence that she never sent nor received classified information. To wit:
“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is information that they were extremely careless in their handling of very sensitive, highly classified information.” And: “Even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
In fact, the FBI found 110 emails in 52 separate chains that were classified when they were sent or received. And intent does not matter when it comes to bringing charges.
Comey did say he found no deliberate effort to destroy emails, beyond routine maintenance, but that some of those that were deleted will never be recovered.
And while the bureau uncovered no hard evidence that foreign entities had hacked Clinton’s private server, Comey said it was quite possible, and that the hackers could have covered their tracks.
Clinton’s campaign said it was “pleased” with the outcome and reiterated that using the private server was a mistake—though she spent months denying that after the New York Times broke the story last year.
By branding Clinton “extremely careless,” Comey has handed Trump, the Republicans and other Hillary detractors ample ammunition. Indeed, the RNC called the bureau’s findings “a glaring indictment of Hillary Clinton’s complete lack of judgment, honesty and preparedness to be our next commander-in-chief.”
It is, as I said, an indictment in all but the criminal sense.
As for any punishment, Hillary Clinton will not have to go to court. But she will be tried this fall in the court of public opinion.
Howard Kurtz is a Fox News analyst and the host of "MediaBuzz" (Sundays 11 a.m. and 5 p.m. ET). He is the author of five books and is based in Washington. Follow him at @HowardKurtz. Click here for more information on Howard Kurtz.
FBI’s Comey: Clinton 'extremely careless' about emails, but bureau will not advise criminal charges
FBI Director James Comey announced Tuesday that despite evidence Hillary Clinton was “extremely careless” in her handling of classified emails on a private server, the bureau will not recommend to the Department of Justice that criminal charges be brought against the former secretary of state.
“Our judgment is that no reasonable prosecutor would bring such a case,” Comey said.
Clinton's spokesman Brian Fallon issued a written statement shortly after the announcement.
"We are pleased that the career officials handling this case have determined that no further action by the Department is appropriate.," he said. "As the Secretary has long said, it was a mistake to use her personal email and she would not do it again. We are glad that this matter is now resolved."
Clinton is the presumptive Democratic presidential nominee. Her Republican rival, Donald Trump, blasted the FBI's decision on Twitter.
“FBI director said Crooked Hillary compromised our national security. No charges. Wow! #RiggedSystem” he tweeted.
The latest headlines on the 2016 elections from the biggest name in politics. See Latest Coverage →
path and will now be able to glide to the rigged Democrat nomination."
Despite not recommending charges be brought against Clinton, Comey delivered a blistering rebuke of her actions, saying the FBI found that 110 emails were sent or received on Clinton's server containing classified information.
He added it was possible that people hostile to the U.S. had gained access to her personal email account.
"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information," he said.
Comey said seven email chains were classified at the “Top Secret/Special Access Program level” when they were sent and received on Clinton’s server.
“There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation,” Comey said.
Tuesday's decision helps remove what was arguably the biggest threat to her presidential campaign going forward – a criminal referral that could have led to an indictment – just weeks before her party’s national convention in Philadelphia, where she is set to seal her nomination as the Democrat standard-bearer.
Clinton consistently had downplayed the FBI investigation, even calling it a “security review,” and as recently as June 3 said there was “absolutely no possibility” she’d be indicted. Weeks ago, a scathing State Department inspector general report directly countered her long-running claim that her personal email use was allowed, though her campaign continued to defend the candidate’s actions.
In the wake of that report, Trump, the presumptive Republican presidential nominee, stepped up his criticism of her email actions and said she belongs in “jail.”
The DOJ decision does not strip the email controversy as a campaign issue – Trump and the Republicans are sure to keep hammering it as the campaign lurches into full general election mode post-conventions – but shows the federal investigation did not determine the actions to be criminal, even if they were ill-advised and potentially damaging to national security.
House Speaker Paul Ryan of Wisconsin, a Republican, said the decision not to prosecute Clinton defied explanation, adding: "No one should be above the law."
The decision comes more than a year after knowledge of Clinton’s use of a personal email account and server first became public. Clinton responded at the time with a point-by-point written explanation and a press conference in which she said she had opted to use her personal server for “convenience.”
But critics said she was clearly circumventing government systems in order to try to shield her communications from public records requests, potentially putting sensitive and highly classified government secrets at risk in the process.
During a subsequent review, more than 2,000 emails on the server were found to have contained information now deemed classified, though they apparently were not marked classified when sent.
Trump rips 'rigged' system after FBI recommends no charges against Clinton
Declaring "the system is rigged," Donald Trump slammed presumptive Democratic nominee Hillary Clinton at a North Carolina rally Tuesday.
Speaking hours after FBI Director James Comey announced that no criminal charges would be sought against Clinton over Clinton's handling of classified information on her private server while secretary of state, Trump said she had put the "entire country in danger."
The real estate mogul also insisted that Clinton's server was likely hacked into by foreign governments.
"Our enemies may have a blackmail file on 'Crooked Hillary,'" Trump said, using his preferred nickname for Clinton,"and this alone means she should not be allowed to serve as President of the United States."
Trump also accused Clinton of going to "extraordinary lengths to carry out an Enron-style purge of her emails ... like a criminal with a guilty conscience.
"The laws are explicit," Trump added. "Stupidity is not a reason for anyone to be innocent. And I don’t happen to believe that it was stupidity."
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Trump called the decision not to charge Clinton "a total miscarriage of justice" in an interview with Fox News' Bill O'Reilly Tuesday night.
"She knew what was going on, and frankly, even if she didn't know, what she did was wrong," Trump said.
In his speech, Trump contrasted the non-indictment of Clinton with prosecutions of other officials for mishandling classified information.
"Other people have been hurt by ... so much less than crooked Hillary Clinton," Trump said. "Does that mean we [expunge] their record? Does that mean we have to exonerate everybody? Take back the punishment we gave them?"
Trump also mocked Attorney General Loretta Lynch over her meeting with Bill Clinton at the Phoenix airport last week, specifically Lynch's claim that the visit was strictly social and included discussion of Clinton's grandchildren and golf.
"You can't talk about golf that long," Trump said." I don't think they went over the swing, the technique. The plane's too small."
Later, Trump accused Clinton of bribing Lynch by referencing a New York Times report that said Clinton would consider keeping Lynch as attorney general if she's elected president.
"It's a bribe!" yelled Trump, claiming that Lynch may have believed that she'd have four more years on the job if she let Clinton off the hook.
"It's a disgrace!" Trump repeated. "It's a disgrace!"
Key lawmaker demands answers from FBI after Comey clears Clinton
Will 'rigged' email probe talk haunt Clinton? |
Sen. Ron Jonson, R-Wisc., who chairs the Homeland Security and Government Affairs Committee, fired off the letter asking Comey a series of questions, including how many agents worked on the case, how much taxpayer money was spent on it and, perhaps more significantly, how Comey arrived at his conclusion.
“If the evidence that the FBI collected about Secretary Clinton’s use of a private email account and server did not constitute gross negligence, what set of facts would cause the FBI to recommend criminal charges under the gross negligence standard?” Johnson wrote.
Johnson recounted Comey’s 13-minute statement, in which the FBI director detailed what he called “extremely careless” handling of sensitive government emails, said the bureau could not be sure Clinton’s server was not hacked and even added that government employees who behaved similarly could expect to be sanctioned. But Comey ended the statement by saying he would not recommend to the Attorney General the pursuit of charges.
“Our judgment is that no reasonable prosecutor would bring such a case,” Comey said.
The stunning development appears to bring to an end a potential legal nightmare for Clinton, the presumptive Democratic presidential nominee. But Comey’s demining words could also provide plenty of fodder to her likely opponent, Donald Trump.
The latest headlines on the 2016 elections from the biggest name in politics. See Latest Coverage →
“Comey let Clinton off the hook,” Trump said in a statement.
In the House, Rep Jason Chaffetz, who chairs the Oversight Committee, also had harsh words for Comey.
"The job of the FBI is to provide the fact pattern to the Justice Department and not make the political calculation that this is what a reasonable prosecutor would do. That's not the job of the FBI," Chaffetz told Fox News host Bret Baier Tuesday night.
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